The terms executors and trustees are both used in estate planning. Before looking at the similarities and differences between these two estate plan administrators, let’s review the difference between a will and a living trust:
- A will is a legal document directing the disposition of assets upon a person’s death.
- A living trust is a legal arrangement under which property is transferred to a trustee to administer in accordance with the instructions of the person who sets up the living trust. A trust may continue for a long period of time – both before and after the death of the person whose trust it is.
Executors are named in a will to carry out (execute) your instructions after your death. If you only have a will and don’t have a living trust – the executor of your will is the one who will be responsible for getting your estate through probate.
Trustees are the people you name to carry out the instructions of your living trust while you are alive as well as after your death (someone you trust). As long as you are mentally and physically capable, you (and your spouse) may serve as trustee of your own living trust. When more than one trustee serves at the same time, they are referred to as co-trustees. Following your death (and the death of your spouse), successor trustees serve.
If you are married, after one spouse dies the surviving spouse can serve alone as sole trustee or can serve with a co-trustee. In the living trusts I write for married couples, I usually recommend including the provision that, at the death of the first spouse to die, a successor trustee come on as co-trustee to protect the interests of the deceased spouse in case the surviving spouse remarries.
Where a married couple has children from different marriages, I sometimes recommend that a co-trustee from each set of children always serves together in order to protect the inheritance rights of both sets of children.
As you can see from the above examples, if done right a living trust can go a long way towards ensuring family peace. And if not done at all or done the wrong way, there are strong possibilities for major family feuds.
If you only have a will, who you name as executor is very important because this person will have to deal with your estate going through probate. If, on the other hand, you have a living trust, your executor’s main duties have to do with funeral arrangements and expenses.
If you do have a living trust – your “pour-over” will puts everything in the trust. Thus it is the trustee who carries out the terms of your living trust after you die.
To make sure things go smoothly, I recommend that the executor and successor trustee named be the same person.
When considering who to name as executor and trustee as well as successor executors and successor trustees, keep in mind whether:
- the people you wish to name are trustworthy
- it is convenient for these people to administer the will and trust (one thing to consider is where these people live)
- they are likely to outlive you
- they will be capable of dealing with the administration of your estate, such as hiring lawyers, accountants, appraisers, investment advisors, or whoever else is needed to help them
- they will, in fact, carry out your intentions
It might be a good idea to ask these people if they are willing to so serve before you name them in your estate planning documents.
Of course, an executor or trustee can chose to resign. In that case the next successor executor or trustee takes over. A bank can be named as executor or trustee, although there are reasons to leave this to a last choice.
Both executors and trustees can be compensated for the time spent administering your estate. You can talk to your own estate planning attorney as to whether you want to include in your living trust and/or will how much that compensation should be.
Have a question? Contact Mitchell R Miller.